from the too-bad dept

Back in April, we went through the entire appeals court hearing concerning the appeal of Judge Nancy Gertner's reduction of the jury award in the Joel Tenenbaum case as "constitutionally excessive." The jury had awarded $675,000 or $22,500 per song. Gertner reduced it to $67,500, or $2,250, and argued that the higher rate was just ridiculous. Unlike Judge Michael Davis, who did something similar in the Jammie Thomas case, Gertner did not use the "remittitur" process.

As happens often enough in such things, almost nothing that was heard during the oral hearings really mattered in the decision. The question of due process and remittitur didn't even make it into the hearing -- or if it did, it was a very minor part that didn't make an impact. And yet, that issue was central to the court reinstating the original $675,000 award.

The key points here are really procedural. The court notes that Gertner jumped to the constitutional question, which judges are supposed to avoid if they can. The court also suggests that Gertner should have used the remittitur process, like Judge Davis, allowing the record labels to (as they would have) reject the lower amount and redo the trial. Of course, as we've seen in the Jammie Thomas situation, that seems to lead to a series of wasteful cases.

To summarize: the court here basically avoided the big questions and sent the ruling back, and reinstating the jury award because Judge Gertner jumped the gun, and went straight to the Constitutional questions, when there were still other steps in the process that needed to be taken. This seems disappointing and wasteful in terms of resources, but such are the rules.

Separately, the court, as pretty much everyone not named Tenenbaum or Nesson suspected, didn't give any weight at all to Tenenbaum's separate appeal arguing that the Copyright Act itself was unconstitutional. These arguments were never going to persuade the court, and seemed more like (wasteful) academic exercises all along. In particular, the court eviscerates the idea that mere "consumers" should be treated differently by copyright law than those who are doing more than consuming. It notes that such a distinction is not mentioned by Congress anywhere, and if it wanted to amend copyright law to fix that, it's had plenty of time.

So, for the most part, this ruling is procedural... though it does go out of its way to note that "this case raises concerns about application of the Copyright Act which Congress may wish to examine." Of course, by now we know that if Congress opened up the Copyright Act to tinker, the end result would almost certainly be worse.

Either way, I'm assuming this case is far from over, and Tenenbaum, Nesson and some other Harvard Law students will keep banging the drum -- though, to date, it hasn't been all that successful. This is definitely a disappointing ruling, but hardly a surprising one.

Re: Odd...

A disappointing ruling? Far from it. Where I stand, they got it right pretty much 100%.

First off, you guys are the ones who are all over due process and all that comes with it. Part of that is doing things in the right order, and at the right time. It seems the judge was in such a rush to play activist and overturn the jury award that he couldn't even be bothered to wait for the thing to play out.

The other part is the first amendment challenge. It would appear that they also got this one right, showing once again that these sorts of attempt to try to sweep everying under the free speech rug just doesn't work out. Hopefully some of the poster children (and tenured staff) that have been spouting this nonsense will pay attention and move on to something more productive.

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A disappointing ruling? Far from it. Where I stand, they got it right pretty much 100%.

It was overturned on procedural grounds. Furthermore, it was also remanded, which means that Gertner will use the remittitur process to lower the award again, but give the RIAA the option of a new trial.

(I didn't know that Gertner wasn't using the remittitur process, by the way. Sorry, Jay!)

In contrast: the Thomas-Rasset reduction stays. Once the Tenenbaum trial goes through the remittitur process, the reduced damages will stay in his case as well.

The other part is the first amendment challenge. It would appear that they also got this one right, showing once again that these sorts of attempt to try to sweep everying under the free speech rug just doesn't work out.

"Sweep everything under the free speech rug?" Biased much?

In any case, I don't think anyone here thinks any judge would rule that copyright, in and of itself, is unconstitutional. The First Amendment issues mainly come from the way copyright law is implemented (e.g. the ICE seizures, or the Wind Done Gone case).

Hopefully some of the poster children (and tenured staff)

You know, I don't think you know what "tenured staff" actually means.

I can't speak for others, but I've written a couple of articles for Techdirt, and Mike never paid me a dime. We've never even met, in fact.

I know you have your tin-foil-hat conspiracy theories, and love to make false accusations about our motives in public. But the plain fact is, nobody is paid to post here. We post comments because we believe what we say, not because we're paid to say it.

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"Judges shouldn't be going out of the way to tackle constitutional issues. "

Again... Why? Why inundate the process with a byzantine list of rules and precedents when sometimes asking the constitutional question can really get to the bottom of this?

" Especially since there is another way, in this case, to reach the desired goal"But should this be the only way? Should it be that you only have a remittitur process to slash the amounts of juries? No questions were truly answered in this case and everyone already knows the details of what's going to happen.

Why should justice now be expensive because of the instructions, arbitrary damages, and a process that has NOTHING to do with the average citizen?

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Again... Why? Why inundate the process with a byzantine list of rules and precedents when sometimes asking the constitutional question can really get to the bottom of this?

What leads you to conclude that this case can only be decided on constitutional grounds? Moreover, why is it that you and so many others seem to believe that there is only one portion of the constitution that is implicated by this case, i.e., "due process" under the 5th Amendment. It is but one of several constitutional provisions associated with civil actions, with the 7th Amendment being of virtually equal importance, i.e., the right to a jury trial and the primacy of the jury verdict.

Read Footnote 28 of the opinion and you will see what it is that will very likely be the focus of the case now that it has been reversed and remanded.

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"Read Footnote 28 of the opinion and you will see what it is that will very likely be the focus of the case now that it has been reversed and remanded"

... Which says the exact same thing I'm questioning. We already know how this dance ends. The case has gone through two trials, and the amounts have been set for the jury. The amounts set are woefully out of touch with reality based on the vagueness of the statutory damages clause. The Jammie Thomas and Whitney Harper cases have proven that.

All this proves is that the value of a song can't be set by Congress, because they don't know what it is. This has served no purpose but to point out the problems with copyright law, in that it will not serve neither the public interest nor the plaintiffs.

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The statutory damages provision of Title 17 is about as "unvague" as they come. Why do you believe otherwise? Is it because you simply disagree with the amount of the award?

Congress does not set the value of a song. It sets an alternate regime for damages that applies to all works secured under copyright, be they books, movies, songs, software, manufacturing plans, and all other manner of original works of authorship. If the value of a song is truly as low as you seem to believe, then I do have to wonder why one who can easily afford to secure a copy by legal means chooses to engage in clearly illegal conduct.

By the way, statutory damages have been a mainstay of US Copyright Law since the enactment of the Copyright Act of 1790.

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Why one would listen to radio and not buy the music?

Why people are not told they pay for the music that they hear in elevators, restaurants, stores and other places?

Congress does not set the value of a song, the damages should have a base on reality or at the very least resemble reality, which in this case is not, statutory damages for copyrights today where wrote down to counter business not people and that is a problem specially when those same statutory damages are discriminatory, they don't have the same impact on different people or entities with different levels of financial resources.

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"The statutory damages provision of Title 17 is about as "unvague" as they come."

False.

"Why do you believe otherwise?"

As I explained, the difference of provable economic damages vs arbitrary statutory damages is the reason that the RIAA and groups such as Righthaven and USCG will always opt for the latter option.

"Is it because you simply disagree with the amount of the award?"

There are currently three cases that prove the inaccuracy of the law. Whitney Harper, JRT, and Tenenbaum. No economic damages were ever proven in any case.

" If the value of a song is truly as low as you seem to believe, then I do have to wonder why one who can easily afford to secure a copy by legal means chooses to engage in clearly illegal conduct."

Hello? Do you not recognize that it's been 5 years of the enforcement angle? Have you just now realized that iTunes was not around, and all substitutes were being sued by the RIAA for crazy amounts of money? That even Napster's filesharing helped to increase sales, by exposing more people to various music they couldn't find otherwise? That the RIAA's entire premise of stopping filesharing was to make people buy more CDs? Have you done any research into the industry?

"By the way, statutory damages have been a mainstay of US Copyright Law since the enactment of the Copyright Act of 1790"

And they were made obscene by the passage of the NET Act, which was used to go after commercial infringement, which is woefully inaccurate here. Also, before the Net Act passed, commercial infringement was a misdemeanor. The rules changed based on heavy lobbying from the MPAA and RIAA to control distribution. It worked, but the internet undermines that control. What exactly is your point about the statutory rights of copyright?

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Jay, you see vagueness because you want to see vagueness. In a legal sense, the terms are anything but vague, with low and high limits set. Vague would be an open ended deal with no limits, up or down, and with no way to judge.

Proving specific economic damages in these cases is extremely difficult, and would be incredibly costly. We have already established that even the statutory minimums would likely bankrupt these defendants, why would anyone want to spend another shitpile of money to try to prove specific economic damage?

I mean, come on Jay, look around. Did the sales of recorded music go up when file sharing and piracy came along? Is the music industry seeing windfall profits since P2P got active? Nope. Sales are down, way down. While you cannot connect any single share to any single lost dollar, the correlation is clear as it comes. The increase in piracy is directly in line with decrease of sales.

Do you really think anyone would benefit from going out and surveying everyone in the world to see who did or did not buy a copy of a specific song because of a specific download? Are you for real?

Statutory damages are a way to save both sides a ton of money, and keep from creating even larger settlement amounts that will never be met. If you work only on actual proven damages in each case, you make it incredibly expensive for a rights holder to even consider taking legal action. Considering the amount of whining on the "10 cents a page for PACER" thread, let me remind you:

"So let's get this straight.

Because I'm not a lawyer or attorney at law, I have no access to public records, no matter how little or how much it is. I can't look up and reference all of the articles and decisions made in the history of MY country of birth because I didn't pay a fee."

you are so worried about shelling a few dollars out of your own pocket for your own amusement, but you have no problem piling posts onto a copyright holder?

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1) There's no difference between non profit and commercial filesharing in US law.

2) The Statutory damages is arbitrarily high. Which is the entire problem here

3) There is NO method to allowing a statutory claim, merely the fact that the prosecution can bring it up against a defendent. A judge does not opt to enact statutory damages so there's your sign of a problem in one sided litigation.

4) It seems that part 3 fulfills the last requirement of your first sentence.

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" In a legal sense, the terms are anything but vague, with low and high limits set. Vague would be an open ended deal with no limits, up or down, and with no way to judge."

As explained above and going into more detail, the problem with copyright law is that it's a patchwork of rules that no one can truly follow. When we're looking at § 504, I find it amazing that (a)(1)(b) is this much:

(b) Actual Damages and Profits. — The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

Meanwhile, statutory damages is 3 times that size to give supposed "plaintiffs" relief. And all this to say that she likely caused zero damage to the economy with downloading ~30 songs. Go RIAA.

" Did the sales of recorded music go up when file sharing and piracy came along? Is the music industry seeing windfall profits since P2P got active? Nope. Sales are down, way down. While you cannot connect any single share to any single lost dollar, the correlation is clear as it comes. The increase in piracy is directly in line with decrease of sales."

Uhm... No? Are you still toting the line that the music industry is suffering when it's merely the recording industry that's suffering? You might want to look at a few more studies when study after study is showing that filesharing has increased sales. Unless you have something to back up your claim, it seems the only thing you're focused on is the big movie and music industries and not the indies who comprise far more of the industry by far.

BTW, just another quick rebuttal, but isn't filesharing increasing? Just wondering...

"Do you really think anyone would benefit from going out and surveying everyone in the world to see who did or did not buy a copy of a specific song because of a specific download? "

Never said that, but that's a great strawman to blow over. I was always wondering why does the RIAA and by proxy, the USCG decide to go after the statutory damages claim instead of option 1, because there is nothing for a defense attorney/lawyer to do to dispute this, save these expensive lawsuits.

"Statutory damages are a way to save both sides a ton of money, and keep from creating even larger settlement amounts that will never be met. If you work only on actual proven damages in each case, you make it incredibly expensive for a rights holder to even consider taking legal action. "

Yeah, they're really saving the RIAA a lot of money. You spend 17 million to receive $390,000 back. How does that math work out? And how are these settlements going to be met? I guess, JT and Tenenbaum are going to be given a license to print money right after they are charged with this massive lien.

And why should they instead of doing the obvious thing first build better financial incentives for people to go to them instead of what the pirate distribution network is doing!

"you are so worried about shelling a few dollars out of your own pocket for your own amusement, but you have no problem piling posts onto a copyright holder?"

Did you read the example about how court cases for the Perfect 10 precedents are going to be entirely too expensive for someone like me, who actually doesn't work on them?

Have you seen all of the documents for all court cases, noticing what precedents are set?

Is the system accessible to everyone?

If you've said no to all of these questions, then there's a problem with the system in place. The system isn't meant to be a money making scheme as PACER is slowly turning into. It is supposed to be about access to our laws and precedents for everyone. Quite frankly, there's a reason that I don't visit the New York times either, and that's because of their Emperor's Paywall. So if Pacer does the exact same thing, I move elsewhere.

Also, copyright holders usually aren't the original artists. Glad you have that figured out. Now if you can find a way to incentivise copyright holders to make better products than what piracy could possibly offer we might be all better off. It sure would help the RIAA's bottom line if they figured out how to license things instead of sue. Maybe they can talk to This guy or this guy for ideas on how to make money in the digital world.

I answered your points and rebutted them. You've done nothing but repeat the same thing twice now. Further, you're the one undermining your own argument with your ad hominem attacks of a person's character. Rather than attacking the arguments raised, you want to demean me for thinking differently. Oh well, can't argue with someone that likes strawmen, and won't research the studies that make his argument invalid.

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Jay, there is nothing I can add that would change your mind or sway you from your delusional view of the situation. You seem unwilling or unable to look at the other side of things, to see it from the other side of the argument, so even if I send in the dancing elephants and the fire eaters, you won't notice or pay attention.

As I said "fuck me, you are an idiot".

You have to accept and understand both sides of the argument before you can draw the conclusion. You appear instead to be looking at this as another way someone can sneak out of their liability under the law. Sneaking out is just that: sneaking out. In this case, it would be sneaking out by making the burden of proving the loss so high, as to be meaningless for both sides.

Clearly, you don't want to consider any other position than your own, so there is little that can be added. I feel sorry for you being so ignorant as to not be able to look at both sides. Your loss, not mine.

I have a hard time believing someone that can do nothing other than insult me. I have an even harder time believing someone who says I'm "delusional, ignorant, or an idiot" based on the fact that I've backed up my claims from research, proving the legal issue is pointless. So yes, I disagree with you. If you can show anything that the RIAA lawsuits actually caused a drop in piracy, feel free to present it. If you have something that says the copyright enforcement angle has worked in the UK, US, India, or any other country without looking draconian, I'll be surprised. If the law should be changed, it should bring down the punishments to a more reasonable level that isn't an exorbitant sum. As I pointed out in my original post with you, how anyone can look at this situation and say it's justified, when I've pointed out the jury instructions, the actual law, and the very results of it through the results of Tenenbaum's, Thomas' and Harper's court cases, I have no idea.

If the best you can do is say all of these bad things about me, it shows that your argument isn't up to par. Your loss, not mine.

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"If the law should be changed, it should bring down the punishments to a more reasonable level that isn't an exorbitant sum."

Just curious, but what statutory damages level would you consider to be reasonable, and not exorbitant? Bear in mind that the statutory damages regime embraces three situations, mamely, (1) innoncent infringement, (2) not innocent, but also not willful, and (3) willful. Before you answer you should keep something in mind. There are those who advocate levels for all three that in effect would render a right holders monetary remedy for infringment in all three circumstances so miniscule that one of the purposes of statutory damages, to give an infringer a strong incentive to never do it again, would emasculate this purpose. If the price for breaking the law is substantially the same as for not breaking the law, then what would be their incentive to conform their conduct to whithin the boundaries of what is lawful?

"As I pointed out in my original post with you, how anyone can look at this situation and say it's justified..."

Can you envision cirsumstances where it would in your view be justified, and what would comprise such circumstances?

"[W]hen I've pointed out the jury instructions..."

The jury instructions were an accurate statement of the law, and it would be most unusual to chastize a court for being accurate. Moreover, the very instruction you criticize is provided as a model instruction by several of the federal circuit courts of appeal. Is a judge being accurate something to be frowned upon, and if so when and why?

"[T]he actual law, and the very results of it through the results of Tenenbaum's, Thomas' and Harper's court cases..."

These cases break down along two lines. In the case of T and JRT, they each downloaded and distributed several thousand songs over an extended number of years, and were well aware that what they were doing was illegal. Hence, in each of them the infringements were quite correctly deemed willful. H downloaded and distributed a large number of songs as well, but her conduct was determined to be non-willful. Where she differs from the others besides non-willfulness is that she claimed that her infringements were innocent, which if proven would have reduced the statutory minimum from $750 to $200 for each song that was infringed. The appeals court determined that because the rights holders had placed notices of copyright on the works originally distributed to the public, she did not qualify for the reduction under the "innocent infringement" defense.

Perhaps it is useful to keep in mind that in all three of these cases there were legal means readily available for securing copies of each song. Were some of the prices higher than what they were willing to pay? Probably. But, is that a sufficient reason for a court to look the other way and not hold them accountable for breaking the law? After all, they each could have easily simply chosen to look elsewhere for other music that was legally available at a price well within their financial means.

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More food, thousands infringed and you have only a handful of people that got caught and to this day nobody respects the thing some call copyright but is more like "rights for the crazy people that suffers from control issues".

Also the actions of the industry caused a dip in revenues of ten billion dollars, and that is why they stopped suing people, because to sue people is to create very strong advocates against your business, that will never let go, if sharing was bad, suing people was just priceless.

People will never stop sharing, no matter what the law says, no matter what you want people to do they will not do it that way.

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"Just curious, but what statutory damages level would you consider to be reasonable, and not exorbitant? There are those who advocate levels for all three that in effect would render a right holders monetary remedy for infringment in all three circumstances so miniscule that one of the purposes of statutory damages, to give an infringer a strong incentive to never do it again, would emasculate this purpose."

I'm not seeing why the impetus is on the infringer to "never infringe again" when it's the prosecution that has to prove it. There's plenty of alternatives to the RIAA distribution models nowadays. Spotify, Jamendo, and Soundcloud are but a few. People can also watch Youtube. So honestly, the idea that an infringer will never "infringe" again, when they have places to continue to listen to music again seems to be an empty threat.

But you could take out the "per work" wording and have the range become from $200 to $150,000. More leeway for punishments and people might have more respect for the law if it weren't so inflexible about the statutory damages clause. It should be noted that the economics of these mass lawsuits really isn't there. And if it were about relief, instead of quick settlement payouts, I'd probably have a different stance. Having seen this from the RIAA and the USCG as a trolling effort, I'm not entirely convinced this is the best use of our judicial system, since it supports these extortionist lawsuits.

"Is a judge being accurate something to be frowned upon, and if so when and why?"

I don't think anyone is saying that. But notice what Gertner says in her ruling:

As this Court has previously noted, it is very, very concerned that there is a deep
potential for injustice in the Copyright Act as it is currently written. It urges – no implores --
Congress to amend the statute to reflect the realities of file sharing. There is something wrongwith a law that routinely threatens teenagers and students with astronomical penalties for an
activity whose implications they may not have fully understood. The injury to the copyright
holder may be real, and even substantial, but, under the statute, the record companies do not even
have to prove actual damage. “Repeatedly, as new developments have occurred in this country,
it has been Congress that has fashioned the new rules that new technology made necessary.”
Sony, 464 U.S. at 430-31. It is a responsibility that Congress should not take lightly in the face
of this litigation and the thousands of suits like it.

The case most comparable to Tenenbaum’s is that of Jammie Thomas-Rasset, the only
other file sharer to go to trial. The first jury to hear Thomas-Rasset’s case found her liable for
willfully infringing twenty-four sound recordings and awarded the plaintiffs $9,250 per song, for
a total award of $222,000. Although Chief Judge Davis, who
presided over the case, ordered a new trial because of an error in the jury instructions, not because of the size of the award, he noted in dictum that “the award of hundreds of thousands of
dollars in damages” for file-sharing was “unprecedented and oppressive.” When the
second jury returned a verdict of $80,000 per song, for a total award of $1,920,000, Chief Judge
Davis required that the plaintiffs accept a remitted award of $2,250 per song or submit to a new
trial. Thomas-Rasset, 680 F. Supp. 2d at 1048, 1050.(As explained above, the plaintiffs
rejected the reduced award.)

In effect, I believe the Appeals Court shirked their duties by making this a procedural issue. Gertner was aware of the case and showed the problems of this type of litigation, which actually forced her to face the Constitutionality of the situation.

"The appeals court determined that because the rights holders had placed notices of copyright on the works originally distributed to the public, she did not qualify for the reduction under the "innocent infringement" defense."

Unfortunately, it doesn't help that she was 14 when litigation started, the "per work" is still a sticking point, and even with the reduced damages, it's the amount of a car loan. What do they gain by bankrupting her?

But it is simply unconstitutional to make ANYONE pay such an excessive amount of money for listening to a few songs. Today, I am now 23 and a fresh new graduate from college. In addition to the loans that the majority of my generation takes in order to attend college, I have a $30,000 judgment against me that will give me severe financial troubles. This may force me to file for bankruptcy, a status that will ruin my young adult life.
While juvenile criminals get a fresh start when they grow up, I’m still being dragged through the legal mud and will have to carry the burden of something I did when I was a kid.

Why continue litigation when someone says they were willing to pay? Those are Whitney Harper's words. Jammie Thomas would be willing to pay for the songs, not the extortionary amounts. Even Tenenbaum might pay for his songs instead of something far outside of the realm of reality. If they're not getting money from the litigation, the best way to do this has always been through economic means. Making better alternatives than piracy is what has been working. I can't say that enough. The litigation angle has done no one any favors. Enforcing copyright claims will always lead to unnecessary heartache as evidenced with Andy Baio's situation, Whitney Harper's, and the JTs.

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I stated my argument more than once. Each time, you defect, you go off on tangents, and you don't address issues.

What you are doing is what politicians do in a TV debate, you ask them "what would you do about unemployment" and they answer about the environment. You are making your points known, but you aren't look at any of mine.

So basically, I said my piece, you said yours, I think we agree to disagree, and there isn't much more to say that is going to change either of our minds. So why bother just tossing the ball back and forth? It's sort of meaningless.

However, I have marked you as an idiot, and future discussions will start from the assumption that you are an idiot.

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That is fine we all feel that you are an idiot too.
It is just to bad that you don't have any kind of influence to change things, if you had maybe you could pass some more ridiculous laws and we would watch the pirates own your ass every time.

Tsk tsk tsk...

I'm showing research into why I feel the way I do, I'm answering the questions as well as giving a background, and I'm the idiot? HA!

Did you know that Gertner had already looked into the Jammie case? Did you know about the BMW standards and why she chose the way she did? Obviously not.

But that's not all... You decide to say I'm an idiot and assert that through the rest of your anecdotes that I've failed in the conversation while bringing nothing to the table. No reports (which I've done), no logical reasoning (which I've done for you), and plenty of insults when your argument doesn't hold up under scrutiny (which I've not done).

It's rather disappointing... But hey, no sweat off my back. As I said before, you're free to do whatever you want. If your argument doesn't hold water, I'll put some in to help you spot the holes. Call me whatever you like. ;)

But know that I'm more than happy to notice how you've allowed your argument to falter just to continue attacking people that spot the problems of copyright enforcement. Maybe you should take some of the advice up there and read up on how to offer better alternatives. Just sayin. :)

I thought we were having a debate here and I've kept my end of the bargain as best as I could.

You implied that economic damages is difficult to prove. I told you it was not and provided examples. You implied that there was a correlation of lost sales to piracy and Tenenbaum's to blame for being the drop in the bucket for litigation. I showed you how artists have coped with the new technology while "copyright holders" flounder.

Ignore top one...

And then, the paragraphs are confused...

Amazing. Let's recap everything that's occurred here:

I thought we were having a debate here and I've kept my end of the bargain as best as I could.

You implied that economic damages are difficult to prove. I told you it was not and provided examples. You implied that there was a correlation of lost sales to piracy and Tenenbaum's to blame for being the drop in the bucket for litigation. I showed you how artists have coped with the new technology while "copyright holders" flounder.

Did you know that Gertner had already looked into the Jammie case? Did you know about the BMW standards and why she chose to ask the Constitutional question? Obviously not.

But that's not all... You decide to say I'm an idiot and assert that through the rest of your anecdotes that I've failed in the conversation while bringing nothing to the table. No reports (which I've done), no logical reasoning (which I've done for you), and plenty of insults when your argument doesn't hold up under scrutiny (which I've not done).

I'm showing research into why I feel the way I do, I'm answering the questions as well as giving a background, and I'm the idiot? HA!

It's rather disappointing... But hey, no sweat off my back. As I said before, you're free to do whatever you want. If your argument doesn't hold water, I'll put some in to help you spot the holes. Call me whatever you like. ;)

But know that I'm more than happy to notice how you've allowed your argument to falter just to continue attacking people that spot the problems of copyright enforcement. Maybe you should take some of the advice up there and read up on how to offer better alternatives. Just sayin. :)

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"You implied that economic damages is difficult to prove. I told you it was not and provided examples."

This was a comment directed to someone else, but I believe it is important enough to address it.

You mention providing examples, but if I recall correctly your examples were the verdicts in three cases, and were not directed to the ease by which you believe actual damages can be proven.

Longstanding experience informs me that in many litigation scenarios economic damages are extremely difficult to articulate with any degree of specificity. Merely by way of one example among many, in personal injury torts a common remedy is the award of damages for "emotional distress". In such instances the most that can be done is lay out a series of facts directed to the issue, and then turn the matter over to the jury to arrive at what it considers just.

Even if economic damages were easy to prove in the context of a copyright suit, the law is clear that statutory damages can be sought in liew of actual damages even if no actual damage has transpired. This is no accident because one of the purposes of damages in any tort action is to "encourage" the defendant to stop engaging in the conduct that gave rise to the suit in the first place.

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Think of the long tail if this sort of thing were allowed! If any judge (even those in, say, east Texas) could go out of their way to challenge the constitution, it would be chaos; there would be conflicting case law everywhere. It's much better, in my opinion, to restrict this sort of thing to cases that actually revolve around the issue.

If Joel wants to challenge the constitutionality of these (ridiculous) awards, by all means, he should, but in a trial that focuses on that point, not in a criminal copyright infringement trial.

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Luckily, this isn't a criminal copyright infringement trial, or the RIAA would have to prove his guilt beyond a shadow of a doubt. Since they have not proven economic damages , the case would most likely falter. :)

While SCOTUS is the supreme law of the land, there's nothing in the Constitution that says that a lower court can't show, through careful analysis, the problem with a set of laws. There's nothing saying that remittur is required when we already know how that game ends.

What I'm noticing is more and more judges shirking Constitutional questions for mere procedure. After seeing quite a few stories in regards to the push for erasure of the 4th Amendment, I'm wondering why the Judicial Branch doesn't want to push that button.

I know there's a lot of flack for judicial activism when things don't go the way of the prosecution, but honestly, what point is there in remanding this case? More and more, you see the Judicial shirking their duties. The Supreme Court pushed the "very narrow ruling" button and that has done nothing in regards to fixing the patent issue.

Eldred v Ashcroft was given the green light when no one has seen the point of it.

Whitney Harper's case closed down on her when the Supreme Court said no.

Was there justice? Could a lower court have prevented this by enacting the Fair Use Doctrine and dismissing the case? Is there a way to interpret the language, the jobs of the court, so that these ridiculous amounts aren't what people face in these lawsuits?

That's why the constitutionality should be determined and brought up more. Nothing is wrong with following a procedure or remanding this, but it sure would be a lot faster if someone could show us these court rulings based on the Constitutionality of the law, as set by what the judges are supposed to uphold.

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It is the Department of Justice that brings criminal prosecutions under federal law, and not private parties. The legal standard is "proof beyond a reasonable doubt".

The fact it is a civil trial, and not a criminal prosecution, should provide some solace to all those who keep trying to say that the DOJ is doing the "dirty work" of rights holders. Without any doubt the government could have filed charges against Tenebaum. It not having done so reflects that the DOJ decides for itself what to prosecute.

Eldred was given the "green light" precisely because the overwhelming majority of the Supreme Court were of the opinion that the making of policy by legislation is the responsibility of Congress, and not the judiciary.

The issue re Ms. Harper was a narrow one relating to "copyright notice" requirements. A hearing before the Supreme Court was not granted, likely because the court was of the view that the appeals court got it right. Justice Alito was the only member of the court who expressed any interest in hearing the case, but even his interest was somewhat tepid.

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I was referring to the recent Protect IP Act, which actually finds that a "qualifying plaintiff" is:

20 (B) an owner of an intellectual property
21 right, or one authorized to enforce such right,
22 harmed by the activities of an Internet site
23 dedicated to infringing activities occurring on
24 that Internet site.

In effect, this authorizes private parties to enforce copyright law, which seems to be a recipe for disaster. One thought that comes to mind, will they have to go through law enforcement, or do they have their own enforcement police to handle criminal copyright infringement.

If passed into law, the ones who can receive this selective enforcement are those authorized by the Justice Department.

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Like the DMCA that worked so well of course, it is used primarily to stop competitors and for censoring and does nothing to stop the sharing since people keep still complaining about it, so explain why we need that law again?

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Section 4 speaks to private rights of action that are civil actions, not criminal actions. It would allow rights holders to file a civil lawsuit in federal court.

And under Paragraph 2, immediately after the civil suit is filed - before the "infringing" site has a chance to respond - the plaintiffs may use an injunction to block the site completely; force "financial transaction providers" to suspend the site's accounts; and prevent "internet advertising services" from dealing with the site.

Not only that, but Section 5 encourages financial transaction providers and internet advertising services to suspend accounts on their own, without even being alerted to any infringement whatsoever. They are completely absolved of any financial liability if they do - so if they're wrong, tough shit.

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You read the section much too narrowly. A TRO is a time limited measure lasting typically only a few days. A preliminary injunction requires the movant to demonstrate a likelihood of success on the merits. It is not given as a matter of course. Injunctions come at the tail end of the process, and even then they must meet longstanding rules of equity (see, e.g., MercExchange v. eBay).

You should also note that the notice notice requirements are quite demanding, perhaps demanding enough that even some of the diehard anti-IP commenters here might be somewhat surprised.

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If you think I was referring to you (or anyone who posts here) then you are wrong. It's more to do with those people outside of techdirt who keeping chanting "first amendment" every time someone gets arrested, or something else happens.

The attempts are suggested that everything is okay as long as there is some first amendment protected speech involved. That to me is sweeping stuff under the free speech rug, hiding all the bad stuff under a small patch of good.

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If you think I was referring to you (or anyone who posts here) then you are wrong.

Fair enough. Though, since they actually are "tenured staff," i.e. professors of copyright law, then perhaps you should consider that they might know a tad more than you do. Just a suggestion.

It's more to do with those people outside of techdirt who keeping chanting "first amendment" every time someone gets arrested, or something else happens.

If protected speech is being quashed because of that arrest or "something else," then bringing up the First Amendment is utterly warranted. In fact, it would be immoral not to "keep chanting 'first amendment'".

The attempts are suggested that everything is okay as long as there is some first amendment protected speech involved.

Unfortunately for your argument, nobody has ever suggested this. Certainly neither Mike nor Prof. Lessig have, and I know I haven't either. Either you misinterpreted what we said, or are deliberately building a straw man.

What I have always said is that stopping copyright infringement (or any unlawful speech) can never justify blocking legal speech. (Mike and Prof. Lessig seem to share this view.) To my knowledge, none of us ever believed that the First Amendment claims in this case would hold much water.

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Karl, the protected speech thing is what Mike (and others here) hinge their entire support of the rap music sites seized a while back. Even if the sites were cesspools of copyright violations, unapproved uses, and unathorizes remixes, they choose to focus on the "protected speech" of the blog or the chat rooms, and chant "first amendment, first amendment".

Please try to tell me that is true. You can go back and read the stories if you like.

Effectively, what they want to do is sweep all the dirt under a first amendment rug, and claim everything is "clean". You cannot use the first amendment as a foxhole to operate out of. They seem to suggest that you can, which would be an incredible abuse of the constitution, and one certainly unlikely to find much support in the courts, even with SCOTUS being about as conservative as it gets now.

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No one is saying anything of the sort. What is being said is that you can't eliminate the legitimate speech when attempting to eliminate the copyright infringement. No where has anyone said that copyright infringement is protected by the first amendment, that is a straw man you keep setting up.

Luckily there is a method in place to have infringing material taken down: The DMCA Takedown Request. With this tool, that was specifically asked for by the content distributors, (on behalf of the content creators, I'm *sure* /s) one can eliminate the infringing material without collateral damage to the protected speech.

I'm not sure how you still don't understand what is talked about on this site, since you seem to be here more than anyone, except possibly Mike.

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Admittedly an absurd situation to posit, and without suggesting that the First Amendment should never be considered, but perhaps I should designate the exterior of my car as a free speech vehicle on which people can write messages, place stickers, create paintings, etc. Then, if a governmental agency tries to take it away from me because I have done or facilitated something that is illegal, I can simply raise the First Amendment as a defense because of the untoward effect its seizure would have on those thisr parties who want to continue its use as a free speech vehicle.

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Have that cesspool been found guilty of anything?
Does that cesspool not have a forum where politics could be discussed?
Have the participants of that forum not engaged in protected speech like, debating the legality of copyrights, or the legality of the police claims that nobody can record them?

And until a court of law have found in that cesspool copyright violations, unapproved uses and unathorized remixes what you are doing is slandering others, maybe that cesspool should sue Mike for your IP address and get your workplace in hot waters for what you say online.

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Not counting the possible international ramifications of the lost trust the US government could have.

OpenNIC was started exactly because of this type of thing that was predicted before 2000 and now we see it happening, at the time the US government made promises that it wouldn't interfere with the DNS system and now you have idiots doing it.

Guess what idiot, people will just move on to another domain system that it is outside the control of any one country as it should have been done since the beginning, then what?

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Karl, the protected speech thing is what Mike (and others here) hinge their entire support of the rap music sites seized a while back.

There's your first mistake. Cricizing ICE's actions is not the same as supporting the sites they seized. I can criticize the Skokie law that outlawed the neo-Nazi march, without having any sympathy for the neo-Nazis themselves. I can cheer the CDT v. Pappert ruling without having any sympathy for child pornographers.

Of course, since rap artists themselves support these sites, I wouldn't blame anyone else if they did, too.

Even if the sites were cesspools of copyright violations, unapproved uses, and unathorizes remixes, they choose to focus on the "protected speech" of the blog or the chat rooms, and chant "first amendment, first amendment".

As indeed they should. If there is infringing speech on the sites, then the government must target the infringing speech only.

You also apparently ignored the fact that it an least one case (dajaz1), every single song on ICE's list of "infringing" materials was, in fact, sent in by artists or label representatives. And that ICE seized a search engine, which did nothing fundamentally different than typing "filetype:torrent" into Google. And, of course, the site that was found to be perfectly legal - twice - under its country's laws.

And not one of the sites I just mentioned actually had a single byte of infringing material on their servers. Which means that even if all the sites had been shut down permanently, the amount of infringing material that would be taken out of circulation is zero.

Objecting to these things doesn't mean you support piracy. It means you're against tyranny.

Effectively, what they want to do is sweep all the dirt under a first amendment rug, and claim everything is "clean".

Not one person you mentioned ever claimed that the sites were "clean." Only that you can't throw out the baby with the bathwater.

If there is infringing speech on those sites, then you remove the infringing speech. In fact, there are already tools to do so (e.g. DMCA takedown notices), which many of these sites apparently followed (and there are not even any allegations in the seizure affidavits that they didn't).

ICE's actions were unconstitutional, unnecessary, and ineffective. Nobody on Earth should support the seizures, no matter how much they hate piracy.

So if that's why you think this site "supports piracy," then you're obviously biased, and objectively wrong.

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My curiosity is piqued. How does one go about "taking down" infringing content via the DMCA from a site situated outside of the US?

If any site is in the U.S. and is one of the entities listed in 17 USC 512 (as most of the seized sites were), you send a notice to them. Failing to comply will leave them open to liability.

If none of the sites are within the U.S. then you follow whatever the rules are in their country of residence. Just as you would if you were, say, a Turkish citizen who wanted an "insult to Turkishness" taken off of an American site.

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If the DMCA provides a means in the US for a rights holder to secure some measure of redress, this would seem to counsel in favor of a DMCA regime outside of the US, such as encouraged by ACTA.

ACTA goes way, way beyond the DMCA takedown laws.

And there are far more important considerations in copyright law than whether it allows "a rights holder to secure some measure of redress." Copyright law isn't there to encourage lawsuits. It's there to make sure the public has access to content.

Cruel Juries

Where do they find these cruel juries which impose such massive fines?

A song is something which is overpriced at $1. The "lost profit" on a song might reasonably be set at $0.05 per copy shared. If you were to guess that the song got downloaded by 100 others then the loss might be $5. Anything over 1000 downloads is getting fanciful. So $50 per song would be the wild upper limit for any kind of remotely plausible calculation of record company losses. Realistically, record company losses were probably zero. So how did the jury get $22,500? WTF?

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In the Tenenbaum case, the RIAA opted out of settling for economic damages, opting for statutory damages. The statutory damages are based on him being a "willful" infringer, IIRC.

His testimony made him a douchebag, and people punished him for it pretty much. So if you really want to eliminate the out of control punishment, you should take away the statutory damages. By all means, if there are economic damages, let the RIAA prove it in the digital world.

But these outrageous amounts just makes people respect copyright that much less.

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The case was remanded to Judge Gertner because she chose to bypass the long established doctrine of "constitutional avoidance". Yes, this can be viewed as procedural.

At the same time, however, the 1st Circuit made it quite clear that all but one of Tenebaum's arguments were dismissed as contrary to law. This leaves Judge Gertner with little, if any, wiggle room other that address whether or not the common law standard of remittitur applies, and if she determines it does, she must then come forward with a compelling analysis of why it trumps the provisions of the 7th Amendment.

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If you copy a DVD or Bluray you are a pirate according to the law, if you backup your media you are a criminal already so if you do anything that could be construed as copyright infringement you might as well do it with gusto, since the legal system doesn't care if it was one or a million you will be slapped with ridiculous judgements.

More likely...

the appeals court received a nice fat envelope or two or three under the table from the record labels. It never ceases to amaze me how deeply corrupt the judicial system has become; there is one "justice" for the rich, and one "justice" for the poor. In The United States, "justice" goes to the highest bidder.

It's even more amazing when you even see the SCOTUS handing down verdicts that are so blatant that I can't believe they deliver them with a straight face.

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kudos on getting the story straight

Congratulations on getting the story right, as there are reports circulating all over the place which incorrectly suggest that the appeals court rejected Judge Gertner's decision on the due process issue.

This was no more than an application of the 'judicial restraint' & 'avoidance of constitutional question' doctrine, that a constitutional issue should not be decided unless and until its resolution becomes unavoidable.

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Quote:
CD sales have collapsed and actual sales of digital music sales only rose by 7 percent globally last year. Mulligan says there are just too many other ways to listen, from digital piracy to legitimate sites like Pandora or YouTube. And, if you really have to own Britney Spears' latest single, you can join the nearly half million people who downloaded it last week and skip her album.

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Hey, um this may have been pointed out before, but, what is with your juries? are they all on crack or something, because no person (jury) in their right mind would appoint a "$675,000 or $22,500 per song" fine...

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Mr. Nesson has a professional relationship with Tenenbaum, so virtually all of this posts are laden with advocacy for the point of view that best serves the interests of Tenenbaum. This is what lawyers do when they are representing a party.

As I mentioned earlier, the instruction given to the jury concerning statutory damages accurately states the law, and is based upon Model Jury Instructions used by many, if not most, district court judges.

In response to...

"You mention providing examples, but if I recall correctly your examples were the verdicts in three cases, and were not directed to the ease by which you believe actual damages can be proven."

That was not the case. My argument is here. I'm criticizing the AC for his correlation and provided examples of ways They are losing artists to new methods of distribution, because they no longer represent the artist.

Also, it should be noted, not every download is a sale per se. This is the problem with the critical AC who I was responding to. I have to ask, is the downloaded mp3 an alternative to other forms of media? Does it replace it? When a stream is watched, does that mean no one else can watch the same thing? That's the problems with the law as is. It's why I won't ever think this is a legal issue. The law just so happens to criminalize downloading unnecessarily, and the industry can't find ways to differentiate legal from illegal files, which makes the entire process even MORE difficult. These are just some of the problems I see in the suing strategy.

"Even if economic damages were easy to prove in the context of a copyright suit, the law is clear that statutory damages can be sought in liew of actual damages even if no actual damage has transpired. This is no accident because one of the purposes of damages in any tort action is to "encourage" the defendant to stop engaging in the conduct that gave rise to the suit in the first place."

Let's really think about this though... Did Tenenbaum, Harper, or Thomas harm the economic availability of the song through their download? Bear in mind, the songs are available illegally as well as legally. Whether on Kazaa or iTunes, can you really say that it harmed the artist?

Can you say having a streaming service like Spotify, if it were around for these three, would have substituted these "sales", saving the industry a lot of hassle?

What I noticed is people are focused on "yeah, she did it. Now she's got to pay something". The reason no one respects this law is because of the amounts it has charged with it. It doesn't matter that she's been in a jury trial or not. If the instructions say "pick a number between $750 - $150,000, and charge it per work" then how can you say that amount is going to effectively deter anyone else from filesharing?

By now, everyone has read the Jammie Thomas case. They're familiar with the million dollar verdict. Has this stopped filesharing in any regard? If anyone is sued for copyright lawsuits, what is that based on? Right now, it's easier to just settle for a few thousand dollars than go to trial, which exposes the problem as it did here.

The jury instructions read thusly:

“Willful” means that a defendant had knowledge that her actions constituted copyright infringement or acted with reckless disregard of the copyright holder’s rights. You are hereby instructed that a jury in a previous trial has already determined that the defendant’s infringement of plaintiffs’ copyrights was willful. In this case, there is no issue as to the defendant’s liability for willful copyright infringement. As a result, your sole responsibility is to determine the amount of damages to be awarded to the plaintiffs for the defendant’s willful infringement of the plaintiffs’ copyrights.

In this case, each plaintiff has elected to recover “statutory damages” instead of actual damages and profits. A copyright holder may recover statutory damages even if it did not submit evidence regarding actual damages. Under the Copyright Act, each plaintiff is entitled to a sum of not less than $750 or more than $30,000 per act of infringement (that is, per sound recording downloaded or distributed without license). Because the defendant’s conduct was willful, then each plaintiff is entitled to a sum of up to $150,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just.

In determining the just amount of statutory damages for an infringing defendant, you may consider the willfulness of the defendant’s conduct, the defendant’s innocence, the defendant’s continuation of infringement after notice or knowledge of the copyright or in reckless disregard of the copyright, the effect of the defendant’s prior or concurrent copyright infringement activity, whether profit or gain was established, harm to the plaintiff, the value of the copyright, the need to deter this defendant and other potential infringers, and any mitigating circumstances.

The bold is my emphasis. Rather than a range for all damages, the law is a sticking point. So unless the law is changed to have the prosecutors find economic damages (or the ranges go down), which enables statutory damages, there really isn't much more to say in how the litigation will continue to be pointless in regulating filesharing behavior.